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Legislative Memo

BILL:

S.6824-A (Marchione) /(A.9568-A (McDonald)

SUBJECT:

Extension of Statute of Limitation on Superfund Sites

DATE:

June 16, 2016

The Business Council opposes this legislation which would add Section 214-f to the Civil Practice Law and Rules (CPLR) with respect to Superfund sites. For several reasons, this legislation is excessively broad and patently unfair to parties who are not responsible for the injury but nonetheless could end up bearing the costs of additional litigation. This legislation without a doubt will increase litigation while not addressing issues underlying the environmental hazard.

While the bill memo claims the legislation addresses the problems faced by residents of Hoosick Falls, since the contamination in the town appears to be have been discovered at the earliest in November 2014, the vast majority of Hoosick Falls plaintiffs would still have until November 2017, or potentially later, to file a complaint under existing CPLR provisions. With current law appearing to give the vast majority of Hoosick Falls residents at least roughly an additional year and a half to file suit, this legislation is unnecessary in the instant case while have far-reaching unintended consequences for others sites.

Summary

This legislation provides that a personal injury action based on contact with or exposure to any of the substances found within an area designated as a Superfund site may be commenced:

“within the period allowed pursuant to section two hundred fourteen-c of this article” or

“within three years of such designation of such area as a superfund site,” whichever is latest.”

Superfund Listing Unrelated

Superfund sites are listed when suspected inactive hazardous waste sites (former industrial sites, gas stations, dry cleaners, etc) are reported to the DEC or EPA. Sites can be listed based upon the mere presence of a substance no matter what the concentration or potential for harm might be. Such listed sites may in fact pose no threat of exposure or injury to the public. However, the linkage between the listing of a Superfund site and toxic tort actions will undoubtedly encourage plaintiffs’ lawyers to bring unwarranted pressure on the Department of Environmental Conservation (DEC) and Environmental Protection Agency (EPA) to designate new Superfund sites across the State, thus turning attention away from the pursuing of causation information and instead applying it to merely lobbying for the designation of properties as a Superfund sites.

Designation a Superfund Site

The designation of a Superfund site has little to no connection to issues of tortious harm, in fact, DEC places “listed sites” in one of five categories, with the bottom 3 classes posing little or no risk. “Class 3 sites” are those where contamination does not constitute a significant threat to public health or the environment. “Class 4 sites” are those that have been properly closed but require some management. “Class 5 sites” have been closed and require no further action. Only sites in Classes 1 or 2 constitute a significant threat to public health or the environment, and even the determination that a site is a “significant threat” can be based on a multitude of reasons unrelated to latent threats to health, such as flammability or reactivity. See 6 NYCRR 375-2.7(1)(v).

The bill does not distinguish among the different classes of State Superfund sites. As a result, the extended statute of limitations could apply to sites that do not actually constitute any threat to public health or the environment. Ironically, the legislation thus would revive toxic tort claims at newly designated sites that DEC has determined do not pose a threat to public health or the environment.

Similarly, sites that are listed on EPA’s Comprehensive Environmental Response, Compensation, and Liability Information System (CERCLIS) remain on the EPA’s list even after EPA decides they do not warrant moving further in the site evaluation process and are given a “No Further Response Action Planned” (NFRAP) designation. Sites can also remain on the list after completion of the required remedy. As expressly stated in the definition of “CERCLIS” found at 40 CFR 300.5, “Inclusion of a specific site or area in the CERCLIS data base does not represent a determination of any party's liability, nor does it represent a finding that any response action is necessary.”

Politicizing the Superfund Designation Process

Linking the statute of limitations to Superfund designation will lead to political mischief. The law will undoubtedly encourage plaintiffs’ lawyers to raise concerns about contamination at sites with the goal of pressuring DEC and EPA to designate new Superfund sites across the State. Sites will be designated based on politics rather than health/environmental risk.

The addition of Superfund sites to the list based on political pressure will lead to pressure on DEC and EPA to expend limited funds to evaluate and clean up these sites, rather than allowing the EPA and DEC to focus its limited resources on the sites that pose the greatest health/environmental risk.

Excessively Broad

CPLR 214-c(2) already extends the three year statute of limitations set forth in CPLR 214(5) on an action to recover damages for a personal injury. Under CPLR 214-c(2), a plaintiff has three years to bring an action from the date of discovery of the injury or from the date which the injury should have been discovered “through the exercise of reasonable diligence.” Therefore, a person suffering from the latent effects of exposure to a hazardous substance from a Superfund site is already protected by CPLR 214-c(2).

Furthermore, where the cause of the injury was initially uncertain, CPLR 214-c(4) already gives a plaintiff up to five years after discovery of the injury to identify the cause of the injury and then another year from the discovery of the cause of the injury to file a claim; provided only that the discovery of the cause of the injury occurs less than five years after discovery of the injury. Section 214-c, therefore, adequately protects plaintiffs who may be affected by latent exposure to a substance that later causes injury.

Any Substance Present

The legislation allows for litigation due to “contact with or exposure to any substance”. The legislation does not restrict the limitations on personal injury claims to the substance or substances that resulted in the listing of the site. The bill provides that any injury that is related to any substance present (regardless of the amount, concentration or potential for exposure) is preserved by the modified statute of limitations. For example, an injury actually caused by exposure to lead paint in a home located on a Superfund site would revive a claim preserved against the manufacture of the paint even if the lead was not a contaminant of concern for the cleanup of the site. Therefore, by extending the limitations period for any substance present at a site based on the timing of a site’s listing, the legislation will result in damage claims against parties responsible for a site but not for the concentrations of the substances that actually caused the injury.

Patently Unfair

The indefinite tolling of the statute of limitations is not only excessively broad to preserve claims caused by latent effects from exposure to certain substances, it is patently unfair. Under the proposed legislation, site owners or others potentially named as defendants in third-party tort claims would be deprived of any type of repose, since the law contains no outside limit on when a cause of action for personal injuries associated with site contamination can accrue. An action for personal injuries purportedly caused by contamination could be revived many decades after the injury arose simply because EPA or DEC decided to designate the property as a Superfund site. In fact, an action for personal injuries purportedly caused by contamination could be revived many decades after the injury arose even if the plaintiff had known the cause of their injuries and failed to act.

Current statutes of limitations improve the accuracy of fact-finding and provide some measure of repose for defendants. The delay in commencing actions for personal injuries associated with site contamination allowed under the proposed legislation would impair the ability of site owners and other defendants to defend them because key witnesses, documents and other evidence will no longer be available.

Under this provision of this bill, a plaintiff may have full knowledge of his or her injury and its underlying cause for years and choose not to file a lawsuit. The designation of a site as a Superfund site any number of years later would then give that plaintiff the opportunity to reopen an otherwise untimely suit.

Statutes of limitation are designed to ensure that plaintiffs with valid causes of action diligently pursue those causes of action. Further, statutes of limitations prevent stale claims where a defendant may no longer have exonerating evidence. The bill as written would allow a cause of action to be brought many years after a plaintiff discovers the cause of the underlying injury. Defense of such a lawsuit would be completely impracticable for potential defendants.

Conclusion

As demonstrated above, this legislation is excessively broad, and patently unfair. Additionally, the bill could have significant financial implications for local governments, many of which own or are potentially responsible for contaminated sites, such as landfills or industrial properties acquired through foreclosure. The proposal has fiscal implications for the State as well, since State agencies, such as the Department of Transportation or Thruway Authority, are often named as responsible parties at Superfund sites.

For all of these reasons, The Business Council opposes S.6824-A /A.9568-A.